Ross v. Bank of Burlington

The opinion of the Court was delivered by Hutchinson, J. William D. Ross has declared against the President, Directors, and Company of the Bank of Burlington, in four counts. The two first are special, and the two last general, for money had and received, and for money laid out and expended. The object of the suit is to recover about $800, which the plaintiff contends he ought to recover, on the ground that he was the holder and owner of that amount, in bills of said bank, which were burnt and destroyed, with, and on board of the steam boat, on Lake Champlain, Sept. 5, 1819. The last jury trial in said action, was had upon the issue of non assumpsit, to all the counts of the declaration; and the jury found for the plaintiff said sum, and interest from the time a demand was made upon the defendants for the pay. The cause has now been argued, upon a motion in arrest, and upon a motion for a new trial. The ground for the motion in arrest, is, that the verdict is general upon all the counts ; and [51] the defendants contend, that the two first counts are bad. The Court dispose of this question, without deciding upon what might be its merits, under different circumstances. By inspection of the record, we find, that this Court has once decided those counts to be good, when met by a special demurrer. That demurrer, by leave of Court, has been withdrawn, and the general issue pleaded, and a verdict given for the plaintiff, oii that issue. We are not at liberty to decide that the same declaration is bad, after verdict, which this Court has decided to be good, on a special demurrer. The motion in arrest, therefore, does not prevail. The motion for a new trial is predicated upon exceptions taken at the trial, and allowed by the judges. By this, it appears that the defendants’ counsel objected in gross to the plaintiff’s testimony, by which he offered to prove his declaration; but it was admitted by the Court, and this Court now consider it rightly admitted. If it is to gain credit at all, according to the view to be taken of it, upon another point, it exactly proves the two special counts of the plaintiff’s declaration ; and, for ought the Court can discover, equally proves the money counts. When the defendants issued their bills, they received for them money, of its equivalent; securities, perhaps, upon which they, in a short time, realized the money. The plaintiff paid to some person or persons, the amount of these bills, when he became the owner of them. This, as between the plaintiff and defendants, may be considered money paid by him, for their benefit; and established the plaintiff’s right to receive the money of the defendants, on presenting thé bills at the bank for pajunent. If, thenj these bills were destroyed, while, thus owned by the plaintiff, so that neither he, nor any other person, can ever present the same for payment, there is as strong an equity, that he should recover the amount, as there is that any note to an individual should be recovered of its signer, after it is destroyed. Without such recovery, the defendants, by such loss, would gain the whole amount of the bills: nor need the plaintiff apply to a court of chancery for relief, as contended by defendants’ counsel. If his testimony make out his case at law, his remedy is good at law; and there being no cases found, in which banks have been adjudged liable, in such cases, or in which a similar question has been litigated, forms no valid objection against the plaintiff’s availing himself of his testimony at law, when the analogy is so apparent between this case, and the cases so often adjudged of individual securities lost of destroyed. Proving a loss only, could not avail the plaintiff, because, the bills being payable to bearer, the finder might present them for payment. The evidence offered and objected to, in this case, if it proves any thing, proves the destruction of the bills ; so that the defendants can be holden only to the plaintiff for their amount. The admission of the plaintiff’s testimony is, therefore, sanctioned by this Court. The next question that arises is, whether the plaintiff [52] sufficiently proved, by proper testimony, that the bills were destroyed. Upon this point, the testimony was heard, and adjudged of by the Court, preparatory to the admission of secondary evidence, to prove the contents; and both parties seem well agreed that this was a correct course; and this Court is now called upon to review their decision, and decide whether there was sufficient proper testimony to prove the destruction of the bills. The testimony of Cook is very full, that he delivered plaintiff $800 in bills of the Burlington bank, on the 3d of September; and that the plaintiff told him, he wanted them to send by the steam boat, to Plattsburgh. Gould testifies, that, at the request of the-plaintiff, he applied to said Cook for said Burlington bills. His testimony, and that of Delaney and Noble, is strong to show, that the plaintiff counted the money he had of Cook, made a package, and addressed it, “To the Cashier of the Plattsburgh Bank” — Said, it contained $800, and that he was about to send it by the steam boat. That he carried the package so addressed and marked, to the steam boat; and the testimony of Captain Sherman shows, that such a package, so addressed and marked, was delivered by the plaintiff to him, with directions, that he should deliver it to said Cashier. And it appeared, that the plaintiff, generally, to these several witnesses, spoke of the package as $800 Burlington bills, he was sending to Plattsburgh, for exchange : and Sherman’s testimony shows, that the bills, or whatever was in that package, were burnt in the steam boat cabin, when said boat was burnt. Now it is contended, that the sayings of the plaintiff are no evidence for him; and that, without these sayings, the testimony would be deficient in shewing the loss or destruction. The Court view these sayings of the plaintiff, accompanying and explaining his actions, and that at a time when he could not have anticipated the burning of the steam boat, as parts of the res gesta, and as proper evidence in the action. It is not possible for us to suspect Ross of making those observations, at that time, in contemplation of the event that happened: and the strict coherence of the acts and matters proved, and the objects and explanations of those acts expressed by plaintiff, forces the conviction, that the same bills, received by plaintiff from Cook, were destroyed. The secondary evidence, to prove the contents of the bills, was, therefore, rightly admitted. This virtually disposes of the request by defendants’ counsel, that the Court should charge, that the testimony was insufficient to entitle the plaintiff to recover; for its sufficiency, so far as comes within the province of the Court to decide, is above established. But it is insisted, that the plaintiff’s demand was insufficient, because, he did not identify the bills, nor furnish evidence that they were destroyed. If the bills were destroyed, it is not to be expected they could be identified, otherwise than as to the amount and genuineness. Nor is any further identity of any importance to the defendants, for their bills circulate as money, [53] and they redeem them by their amount, without reference to their particular description, further than to be sure they are genuine It does not appear that any proof was furnished of the burning of the bills, at the time of demand. The plaintiff informed defendants that $800 of their bills, of which he -was own-*i v t "" a .1 , ¶ . , er, were destroyed. It does not appear that any objection was made at the time to the want of such proof, nor that any doubt was then entertained by the defendants on that subject; and the defendants making no such objection then, it is now too late to rest upon it. The Court consider the,testimony describes a sufficient demand. Honan Allen and Chs. Adams, attornies for the plaintiff. Samuel Prentiss, attorney for defendants. Thus we dispose of all the points in the case, except those arising upon the charge actually given to the jury. It seems there must have been some mistake in expressing, or in penning down, the charge; for the Court could not have intended, exactly, what is expressed upon paper. The case states the charge to be this : “The Court, having determined that eight hundred dollars, in genuine Burlington bank bills, of the denomination mentioned in the plaintiff’s declaration, were destroyed on board the steam boat, on the 6th of September, 1819, they, (the jury), had nothing to do with the question, whether the bills were destroyed, or not, or the amount, or genuineness thereof; and, if they found, from the evidence submitted to them, that the plaintiff was the owner, or holder, of the bills, and that payment had been demanded, in the manner proved, they would return a verdict for the plaintiff to recover $800, with interest, from the time payment was demanded.” It seems impossible but that the Court should have seen, that the amount and genuineness, were proper questions for the jury. Indeed, the question left to the jury, of the plaintiff’s being the owner, or holder, implies the question as to the amount also : yet the Court do not disturb the verdict on this account. In the first place, there appears to have been no litigation about the amount, on the trial before the jury; and, probably, the Court treated that point out of dispute, because the parties did so. But, secondly, the Court consider they ought not to grant a new trial, upon a point, concerning which justice has been done, or, on account of a mistake, which could not have altered the verdict. We find, that the Court left to the jury the question, whether the plaintiff was the owner, or holder, of the bills. Now, we conceive it impossible that a jury, finding the plaintiff to be the owner, could, from the testimony, have found the sum any other than $800. The new trial is refused ; and judgment is rendered on the verdict, with interest to be added, according to the rule entered into, on respiting the judgment. Prentiss, J. being of counsel in the cause, did not sit.